United States v. Susi, 2012 U.S. App. LEXIS 5869

Susi was convicted at trial of one count of conspiracy to defraud and multiple counts of aiding and abetting wire fraud arising from a Costa Rican telemarketing sweepstakes scheme.
The PSR attributed about $760,000 in actual loss to the call center where Susi worked; restitution had originally been set at $4.2 million based on losses from all centers.
On first appeal, the Fourth Circuit affirmed convictions but vacated the sentence and restitution, remanding for resentencing consistent with its opinion.
On remand, the district court declined to recalculate the Guidelines range, citing law-of-the-case and mandate-rule concerns, and then fashioned a new sentence based on § 3553(a) factors and $1.105 million restitution.
Susi argued for a downward variance based on limited role, cooperation, remorse, and repatriation of funds; the court issued a below-Guidelines sentence of 160 months per wire fraud count and 60 months for conspiracy, to run concurrently, with $1,105,000 restitution.
Susi appeals the resentencing, challenging recalculation of Guidelines, due process for potential vindictiveness, and adequacy of the § 3553(a) justification.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Law-of-the-case recusal on Guidelines	Susi contends Pepper requires de novo Guidelines recalculation on remand.	Government argues remand did not mandate recalc and law-of-the-case barred reopening.	Harmless error; no reversible impact on Guidelines calculation; Court affirmed.
Vindictiveness for exercising right to trial	Susi claims sentence punished him for choosing trial over guilty plea.	Court held no vindictiveness; sentence below original and aligned with factors.	No vindictive violation; sentences not improper for trial choice.
Procedural and substantive reasonableness under 3553(a)	District court failed to adequately weigh § 3553(a) factors and provide individualized reasoning.	Court conducted individualized § 3553(a) analysis and explained why variance/variance factors applied.	Sentence deemed reasonable both procedurally and substantively.
Presumption of reasonableness for below-Guidelines sentence	Challenge to below-Guidelines length under 3553(a) should be treated with scrutiny.	Court adopts a rebuttable presumption of reasonableness for below-Guidelines sentences in this circuit.	Presumption of reasonableness applied; no error found in keeping below-Guidelines sentence.

Gall v. United States, 552 F.3d 577 (2007) (requires proper Guidelines calculation and § 3553(a) consideration for reasonableness review)
Rita v. United States, 551 U.S. 338 (2007) (presumption of reasonableness for properly calculated sentences)
Pepper v. United States, 131 S. Ct. 1229 (2011) (de novo resentencing not always required; scope of remand controls reopening)
Balbin-Mesa, 643 F.3d 783 (10th Cir. 2011) (below-Guidelines sentence presumptively reasonable)
Breland, 647 F.3d 284 (5th Cir. 2011) (below-Guidelines sentence presumptively reasonable)
Liddell, 543 F.3d 877 (7th Cir. 2008) (presumption applies to sentences within or below Guidelines range)
Curry, 536 F.3d 571 (6th Cir. 2008) (presumption of reasonableness for within/below Guidelines)
Canania, 532 F.3d 764 (8th Cir. 2008) (presumption of reasonableness for below/within Guidelines)
Abu Ali, 528 F.3d 210 (4th Cir. 2008) (Abbott-style review of reasonableness and presumptions)
Carter, 564 F.3d 325 (4th Cir. 2009) (district court need not recite every § 3553(a) factor)